Necessity and National Emergency Clauses: Sovereignty in Modern Treaty Interpretation

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Martinus Nijhoff Publishers, Jan 5, 2012 - Political Science - 411 pages
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States invoke economic crises and security threats to justify treaty non-compliance. The most dramatic recent examples of this phenomenon include necessity defences in international investment law; emergency derogations in international human rights treaties; exceptions for non-conforming measures in international trade law; and doctrinal misapplications of necessity in jus ad bellum and jus in bello. "Necessity and National Emergency Clauses" is the first to trace the doctrine s genealogy from medieval Christian and Islamic religious history to post-Westphalian practices, the International Law Commission s codifications, and modern treaty formulations. Recognizing the doctrine s thematic linkage with the State s sovereign right to delimit international obligation, the volume proposes analytical criteria to assess the lawfulness and legitimacy of interpretations of necessity and national emergency clauses within specialized treaty regimes. This volume is intended for law students, legal scholars, arbitrators, international judges, and other international law practitioners interested in deriving interpretive solutions to treaty controversies on the doctrine of necessity. Diane Desierto was awarded the 2010-2011 Ambrose Gherini Prize, the highest prize awarded in the field of International Law by Yale Law School, for her JSD dissertation, upon which this book is based.
 

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Contents

Necessity and Treaty Obligations
1
Chapter Two The Doctrine of Necessity in Municipal and International Legal Orders
35
A Conceptual Descriptive
63
A Proposal
123
Necessity Clauses in International Investment Law and International Trade Law
145
Chapter Six States of Emergency in International Human Rights Treaties
237
Recent Proposals in Jus Ad Bellum and Jus in Bello
283
Necessity Sovereignty and Treaty Interpretation
349
Selected Bibliography
357
Subject Index
403
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About the author (2012)

Diane A. Desierto, JSD (2011), LLM (2009), Yale; LLB cum laude (2004), BS Economics summa cum laude (2000), UP Law/Econ; 2010-2011 Yale Fellow (Judges Simma/Sepulveda-Amor) International Court of Justice; teaches international law in UP Law and advises Philippine government agencies. Diane Desierto was awarded the 2010-2011 Ambrose Gherini Prize, the highest prize awarded in the field of International Law by Yale Law School, for her JSD dissertation, upon which this book is based.

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